Tam Shui-yin and Another v. The Queen

Case No.HCMA 1492/1983

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

CACC001492/1983

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1492 OF 1983

--------------------------------

BETWEEN:-

	TAM Shui-kin	Appellants
	SHUM Shui-ying (F)
	-and-
	THE QUEEN	Respondent

-------------------------

Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 29th December 1983

Date of delivery of judgment: 3rd January 1984

Mr. Lawrence Lok (Laurence Pang & Co.) for Appellants.

Mr. G. Jackson (Legal Department) for Respondent.

-----------------------

J U D G M E N T

-----------------------

1. On the evening of the 31st August 1983 a party of police officers carried out a gambling authorisation at the Pak Fook Association, Jordan Road, Kowloon where mahjong is played. It was not in dispute that the premises were used as a gambling establishment.

2. The first appellant was charged with managing a gambling establishment contrary to section 5(b) of the Gambling Ordinance Cap. 148, but was found guilty of assisting in the management of a gambling establishment contrary to section 5(c). He was fined $1,000.00 and ordered to pay costs of $500.00. The second appellant was charged and convicted of assisting in the management of a gambling establishment and was bound over in the sum of $500.00 for 12 months with no conviction recorded and ordered to pay costs of $500.00. Both appellants appeal against their conviction.

3. When the police officers who were posing as customers arrived at the premises they were greeted by the second appellant whilst the first appellant was seen at a counter handling bills. The second appellant took the police officers to a room to play mahjong after ascertaining from the first appellant that the room was unoccupied. The second appellant asked the police officers if they were members and on being told that they were not she requested one of them to produce his identity card in order to become a member. PW2 Sergeant Wong gave his identity card to the second appellant which she returned later with a membership card. The second appellant also presented the bill for payment when it was requested. Neither appellant gave evidence.

4. The around of appeal that the learned Magistrate did not find as a fact that the premises had been used a gambling establishment was abandoned. The first ground of appeal lodged on behalf of the appellants and the only one relating to the second appellant was that there was no evidence or no sufficient evidence that the appellants were assisting in the management of the gambling establishment at the material time. However, Mr. Lok who appeared for the appellants did not pursue this ground strongly on behalf of the first appellant. In respect of the second appellant he submitted that the tasks performed were menial, and did not amount to assisting in the management or control of the establishment. However, I agree with the learned Magistrate that the facts he accepted supported the conviction for they show that the second appellant took an active part in the running of the business. The evidence was strong against both appellants.

5. The second ground was that the learned Magistrate failed to consider whether the prosecution had proved beyond reasonable doubt that the first appellant had the requisite mens rea for the offence of assisting in the management. As the first appellant dial not give evidence no adverse inference could be drawn from his failure to do so. However, the learned Magistrate was entitled draw reasonable inferences from the evidence given by the witnesses for the prosecution. The evidence clearly shows that the first appellant must have known what he was doing. As a result I find no validity in this ground. Mr. Lok also argued that the learned Magistrate did not give consideration to the first appellant's cautioned statement. Only part of the cautioned statement was admitted which reads as follows:-

"I do not operate an illegal gambling establishment. I have come to relieve my friend to work and I have no knowledge concerning everything."

This amounts to a pure denial. Although the larned Magistrate did not specifically refer to this evidence in his statement of findings he was left with the evidence of the prosecution witnesses which he believed. The cationed statement took the matter no further.

6. The final ground of appeal was that the learned Magistrate erred in varying the charge against the first appellant from one of managing to one of assisting in the management of a gambling establishment without complying with S. 27 of the Magistrates Ordinance, Cap. 227 which provides:-

''27. (1)No objection shall be taker or allowed to-any complaint, information or summons for any alleged defect therein in substance or in form, or for any variance between such complaint, information or summons and the evidence adduced in support thereof, and the adjudicating magistrate shall in all cases give judgment upon the substantial merits and facts of the case as proved before him, and-convict the defendant of the offence with which he was charged with such variation as has been warranted by the evidence or of any offence which under the provisions of section 10(2)(c) could have tried therewith.

(2)Whenever in the opinion of the magistrate there is a defect of substance or there has been any such variance as aforesaid he shall make the necessary amendment in the complaint, information or summons and shall read and explain the same to the defendant:

(3)In every case falling within the preceding subsection parties shall be allowed to recall and examine on matters relevant to such amendment any witness who may have been examined and to call any further witness:

Provided that if the amendment under subsection (2) is made after the case for the complainant or informant is closed no further witness may be called by the complainant" or informant other than such and on such matters only as it would, notwithstanding the provisions of this section, be permissible to call and put in evidence in rebuttal.

(4) In any case falling within subsection (2) the magistrate shall grant any adjournment which may be reasonably necessary to enable the parties to exercise their rights under subsection (3) or to enable the defendant to reconsider his defence.

Mr. Lok submitted that compliance with this section was mandatory. In support of his argument he cited Wang Sai-yu v. The Queen (1973) H.K.L.R. 382. In that case:-

" The appellant was tried in the magistrate's court on three charges that he, being the proprietor, publisher and editor of a newspaper for distribution to the public, did publish in the newspaper matters of an obscene nature contrary to section 4 of the Indecent Exhibitions Ordinance. Cap. 150.

In his judgment the magistrate found that the articles the subject of the charges were not obscene but found that they were offensive and convicted the appellant on all three summonses "with the variation in the charges of the word obscene to the word offensive. The magistrate did not amend the charges during the trial and otherwise failed to comply with section 27(2), (3) and (4) of the Magistrates Ordinance."

Pickering, J. allowed the appeal on the grounds that the appellant had been deprived of his opportunities of defence to which he had a statutory right under S. 27. Mr. Lok also referred me to So Kan-yuen v. The Queen, Cr. App. 305/83. In that case Bewley, J. quashed the conviction when the appellant was convicted of managing a vice establishment although he was charged with keeping a vice establishment on the grounds of non-compliance with section 27. Mr. Jackson for the Crown drew my attention to Section 51(2) of the Criminal Procedure Ordinance, Cap. 221 which provides:-

" If on the trial of any-information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence."

He went on to cite Kwok Hung v. The Queen (1978) H.K.L.R. 173 where it was held:-

"1.

If, having heard all the evidence for both the prosecution and the defence, the magistrate is satisfied that the original charge has not been proved, there are three situations where he may convict of another offence -

	(a)	where there is express statutory provision, such as the scheduled alternatives to the Crimes Ordinance; or
	(b)	where the common law provides express precedental rule which is admitted by section 149(2) of the Crimes Ordinance; or
	(c)	under section 51(2) of the Criminal Procedure Ordinance where the particulars laid in the information or charge necessarily include another offence which has been proved,

applying (b) the magistrate had power to convict as he did.

The power given by section 51(2) of the Criminal Procedure Ordinance deals with the jury function of the magistrate. It is wholly distinct from the power conferred by section 27 of the Magistrates Ordinance which is intended to deal with the quite different situation which arises when some formal defect in the information is detected or there is some substantial variation from the particulars charmed. A magistrate should see to it that a justified complaint should not fail by careless omission or technical default.

Management of a gambling establishment must include an element of control. Assisting in the management is in my judgment necessarily included in this offence, and the analogy drawn by Mr. Jackson of aiding and abetting is wholly apt. Mr. Lok contended that if there was an overlap between s. 51(2) of the Criminal Procedure Ordinance and s. 27 of the Magistrates Ordinance s. 27 should prevail. However, s. 27 need only be invoked where there has been a defect of substance in the information or there has been a substantial variation in the complaint. Such a situation did not arise in the present case. Accordingly this around of appeal fails. The appeals against conviction are therefore dismissed.

	(B.L. Jones)
	Judge of the High Court

Representation:

Mr. Lawrence Lok (Laurence Pang & Co.) for Appellants.

Mr. G. Jackson (Legal Department) for Respondent.